United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-41380
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR PEREZ-CUEVAS, also known as Jose Gonzalez-Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-423-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Salvador Perez-Cuevas (Perez) appeals from his guilty-plea
conviction and sentence for being found in the United States
after previous deportation. See 8 U.S.C. § 1326. Perez argues
that the district court erred by imposing a 16-level adjustment
under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based upon his Texas
conviction for burglary of a habitation. As Perez concedes, his
argument is foreclosed. See United States v. Valdez-Maltos,
443 F.3d 910, 911 (5th Cir. 2006), cert. denied, 2006 WL 2094539
(U.S. Oct. 2, 2006) (No. 06-5473); United States v. Garcia-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-41380
-2-
Mendez, 420 F.3d 454, 455-57 (5th Cir. 2005), cert. denied,
126 S. Ct. 1398 (2006).
Perez also challenges, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions
as sentencing factors rather than as elements of the offense
that must be found by a jury. This issue is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Perez contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Perez
properly concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
AFFIRMED.